Answering Fair Housing Questions About Criminal History Screening

How does your staff answer questions about rental applications and criminal history screening? What fair housing implications do you need to be aware of? Join us as we answer these questions to help you stay fair housing compliant.

Hand holding a pen filling out a rental application that has a criminal background section

Estimated reading time: 3 minutes

Criminal history screening has been a hot topic for many years, and it’s not slowing down. While there are multiple facets to this complicated issue, we will focus on the most common one that leasing professionals come across and need to know how to handle correctly. 

I Have a Criminal History – Should I Apply?

This question has led to many fair housing lawsuits. A prospect is interested in a unit but informs the leasing agent that they have a criminal record and asks whether it will affect their approval. Should they even bother filling out the application and paying the fee? It may seem benign and a reasonable question to ask, especially when an application fee is involved but answering the wrong way can lead to a discrimination claim. 

Many may feel that telling a prospect that they probably won’t be accepted based on this and not waste their time or money would be the kind or fair thing to do. These exact responses are the ones being used in lawsuits that claim discrimination and call into question a company’s policy regarding criminal history screening. Dissuading a prospect from completing an application based on their criminal history can be misconstrued as discrimination, even if it’s with the best intentions.

Fair Housing Best Practices

It is never a good idea to discourage anyone from completing a rental application. It’s helpful to remember that it’s not up to the individual leasing agent whether that person will be accepted or not. It’s not their call. Most companies use a third-party screening service to determine eligibility, which helps take the pressure off the leasing agent. So when staff is asked whether they think the application will be approved, the reply simply needs to be: “I don’t know, it’s not up to me, but I hope so!”

A note of caution when answering these types of questions on the phone. Criminal history inquiries are a favorite for fair housing testers. It’s easy to get flustered and start rattling off your company’s whole criminal history policy. Resist the urge to over-explain. Staff should respond the same they would in person. Inform the caller that everyone is welcome to apply and that the final decision is again not up to the leasing agent.

Fair Housing Final Takeaway

Be careful when answering questions about your criminal history policy. 

  • Don’t offer an opinion about whether an application will be accepted.
  • Don’t simplify your policy and state that your property doesn’t accept people with a criminal history.

Instead, encourage everyone to apply, and the screening process will determine whether they qualify. Following these simple steps can help ensure fair housing compliance regarding criminal history screening.

Jonathan (00:12): Hello everyone. This is episode 39 of the 'Fair Housing Insiders'. We're looking forward to an amazing topic again today, but we want you to stick around to the end because we got a little surprise for everyone. So its the year 2022 and some new things we wanted to initiate to get you more involved in the fair housing conversation. So be sure to stick around, to hear about that at the end of this show. So it's 2022, Kathi Williams. Welcome to the show. How are you?

Kathi (00:45): I can't believe we are already in 2022, but as you always glad to be here and glad to talk about this pretty important topic.

Jonathan (00:55): Absolutely. So today's topic is about answering questions about criminal history. So very specific that we wanted to focus on that basically micro topic when it comes to criminal history screening. So Kathi, what's your summary tips that you would provide when it comes to that particular segment?

Kathi (01:21): Well, as you know, Jonathan, this topic of criminal history screening is one of the hottest fair housing topics and has been now for several years, there are a lot of different parts of that topic. And we don't plan to keep people that long to talk about all of them today. We do not plan to talk about for instance, what the policy should look like, what it should contain. Instead, I would like to talk about the action that has caused most of the fair housing lawsuits that have been filed around criminal history screening. And that is how the staff answers questions, questions by prospects who are in the office, or, and even maybe more concerned with questions that come from people who call on the phone and give you a very short, you know, synopsis of their criminal history and say, do you think my application would be accepted. And unfortunately we have a lot of leasing agents out there who sometimes think they're being fairer or nicer to that applicant or prospect by saying, you know, we've got a criminal history policy and we screen everybody. So you're probably not gonna make it if you've got some convictions in your background and they don't do that to discriminate, they do that to be helpful. And in fact, those conversations are being used now in the lawsuits, that question, the entire criminal history screening process that that company is engaging in when they screen applicants.

Jonathan (03:20): All right. Very good. Yeah. A lot of detail. And I I know we'll be covering some other components of this subject in future episodes. So we look forward to talking about that, but thank you so much for that explanation. So let's dive into a scenario that will help our audience as always be able to kind of visualize what it is that you're referring to and make some real world application. So in our scenario for today, we have a prospect that informs the apartment leasing agent, that he has a conviction of a felony about five years ago. He asked whether he'll be wasting his time and application fee by applying for an apartment. So let's see that played out in a quick little clip, and then we'll come back and get your comments on this particular scene and the fair housing implications.

Prospect (04:15): I'm very concerned about spending this money on my application fee because it has happened before that I was denied because of a felony conviction about five years ago. Should I even bother?

Leasing Agent (04:27): Thank you for being honest, Mr. Paul, I know there is a screening process with the application and criminal history is part of it. Maybe it's best. If you don't apply, you'll probably be rejected and you will lose another application.

Kathi (04:45): So, Jonathan, this is exactly what I mentioned earlier I am concerned about, and that is that this leasing agent could be viewed as discouraging this prospect because of his criminal history, right? And that can look like discrimination. And we've had videos in the past where we talked about why that is, but let's just say for purposes of keeping this short, it is never a good idea to discourage a possible applicant. You only want to encourage them and you are not helping anyone, especially your company, if you are viewed as discouraging people based on just about anything and in this case, criminal history screening. So encourage to everybody, most of you are never gonna know why someone was accepted or rejected anyway, because usually that's handled in a very different process. Many of you use third party screening companies, which is fine.

Kathi (06:01): So don't pretend to be the decision maker and discourage somebody. And a special note, be extra careful on the telephone. This kind of question is very common for testers to use, and if they catch you off guard, it's easy for you to try to summarize your policy, your screening policy about criminal history. And that again is not a good idea. So encourage everybody, let them know you don't make the decision that there is screening that will happen, but you want everybody to apply. And then you'll all find out whether the application was accepted or not. And you sure hope it will be kind of thing. So keep that in mind and you will avoid one of the most common problems happening now when we talk of about criminal history screening.

Jonathan (07:00): Very nice. Thank you so much, Kathi. Appreciate your explanation of that. So a micro topic about a bigger topic. So again, for our audience, remember, we are focused on fair housing as it relates to answering questions about criminal history and in future episodes, we will discuss some other components of that, of that much bigger topic. So thank you, Kathi, for providing your, your insight and legal comments as well. We thank you very much. So everyone, 2022, here we are episode number 39. And at the beginning we mentioned about something that we wanted you to stick around for. We piloted in 2021 one episode where we had curated a bunch of questions that have come in on our YouTube channel over time. And we chose those that were coming from housing providers to be able to respond. Our channel is mainly for those who are in the property management industry for all of those that are listening.

Jonathan (08:03): And so we wanna encourage that. We're going to create more videos as we go through 2022 that are very specific about the topics that you're concerned about questions that you have situations that have arise on your property. So please feel free to comment, ask your questions in our YouTube channel. We're gonna be paying attention to those and curating all of those questions. And in future episodes, for those that are related to the housing industry, we're going to address them and answer them. And a lot of other fun things that will be coming. We wanted to kind of highlight that we appreciate you as our community. You are the reason why this channel is doing so well. We thank you so much for your support. We're grateful to be starting another new year together and educating, having great education about fair housing. So thank you for being part of this channel and for sharing it with your team members and with your friends. We'll see you guys on our next episode. Take care, everyone.

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The Fair Housing Institute

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